In VJS v SH, the Western Cape High Court supported the remote commissioning of affidavits.

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Introduction: Legal Principles

The case of VJS v SH highlights the evolving landscape of legal procedures in South Africa, particularly concerning the commissioning of affidavits. Traditionally, the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and its regulations required affidavits to be signed in the physical presence of a commissioner of oaths. However, this case challenges this conventional approach considering technological advancements and practical necessities.

Case Background

Parties Involved:

• Applicant: VJS (adult male working in Pakistan)
• Respondent: SH (ex-wife of the applicant)

Key Facts:

• The applicant sought to terminate his parental responsibilities for a child born during his marriage to the respondent.
• The applicant was working in Pakistan and was unable to physically sign the affidavit in South Africa.
• The affidavit was commissioned via video conferencing (Zoom).

Court’s Decision and Reasoning

Acceptance of Virtually Commissioned Affidavit: The court accepted the affidavit commissioned via video conferencing, citing several reasons:

1. Substantial Compliance: The court found that there was substantial compliance with the Act and Regulations, despite the physical absence of the deponent.
2. Technological Adaptation: The court emphasized the need for legal procedures to adapt to modern technology, referencing: Section 37C of the Superior Courts Act Section 158 of the Criminal Procedure Act Section 51C of the Magistrates Court Act
3. Practical Considerations: The court recognized the impracticality and cost implications of requiring the applicant to travel from Pakistan to South Africa solely to sign an affidavit.
4. Analogous Practices: The court drew parallels with witness testimony via audiovisual links in criminal proceedings.

Court’s Discussion on Modernization of Legal Procedures

Benefits of Virtual Commissioning:

• Easier and faster process
• Cost-effective for civil litigation
• Improved efficiency in court processes
• Enhanced access to justice

Support from the Rules Board:

• The Rules Board for Courts of Law advocates for incorporating technology into the civil justice system.
• Aims to optimize resource utilization and improve access to justice.

Advantages of Modernization:

• Reduced costs
• Prevention of unreasonable delays
• Quicker resolution of cases
• Time and travel expense savings

Call for Legislative Amendment:

The court suggested that the Justices of the Peace and Commissioners of Oaths Act and relevant Regulations should be amended to allow for electronic signing and commissioning of affidavits.

Recommendations

1. Legislative Update: Amend the Justices of the Peace and Commissioners of Oaths Act to explicitly allow for electronic signing and commissioning of affidavits.
2. Technological Infrastructure: Invest in secure and reliable video conferencing systems for courts and legal professionals.
3. Training Programs: Develop training for legal professionals on the proper use of technology for remote affidavit commissioning.
4. Guidelines Development: Create clear guidelines for virtual commissioning to ensure consistency and maintain the integrity of the process.
5. Regular Review: Establish a system for regular review and updating of legal procedures to keep pace with technological advancements.

Conclusion

The case of VJS v SH represents a significant step towards modernizing legal procedures in South Africa. By accepting a virtually commissioned affidavit, the court has set a precedent that acknowledges the realities of a globalized world and the potential of technology to enhance access to justice. This decision balances the need for legal formality with practical considerations, potentially paving the way for more efficient and accessible legal processes in the future.

The court’s emphasis on substantial compliance rather than strict adherence to outdated regulations demonstrates a progressive approach to legal interpretation. This case could drive legislative changes, pushing for more robust use of electronic methods in legal processes. As technology advances, more parts of the legal system may need to adapt. The case shows that courts are open to these changes when they promote justice and improve access to legal services.